Refugee Act 1996 No. 17 of 1996

Transcription

1 Refugee Act 1996 No. 17 of 1996 As amended by section 11(1) of the Immigration Act 1999, section 9 of the Illegal Immigrants (Trafficking) Act 2000, section 7 of the Immigration Act 2003, section 16 of the Immigration Act 2004 and section 75 and Schedule 6 Part 15 of the Health Act 2004 (unofficial restatement)

2 Table of Contents Section Page 1. Interpretation 3 2. Refugee 4 3. Extension to refugees of certain rights 5 4. Travel document 6 5. Prohibition of refoulement 6 6. Refugee Applications Commissioner 6 7. Annual report and information to Minister 6 7A. Establishment of Refugee Advisory Board 7 8. Application for declaration 9 9. Leave to enter or remain in State 11 9A. Powers of authorised officers and immigration officers Provisions relating to detained persons Investigation of application by Commissioner 18 11A. Burden of proof 20 11B. Credibility 20 11C. Duty to co-operate Prioritisation of applications Recommendations and reports of Commissioner Establishment day Refugee Appeals Tribunal Appeals to Tribunal Declaration that person is a refugee Member of family of refugee Protection of identity of refugees Prohibition of false information and alteration of identity 34 documents 21. Revocation of declaration Dublin Convention Regulations Programme refugees Saving Annual report to Houses of Oireachtas Laying of orders and regulations before Houses of 42 Oireachtas 28. Transitional provision 42 28A. Transitional Expenses of Minister Short title and commencement 42 Schedule 1st Refugee Applications Commissioner 43 2nd Refugee Appeals Tribunal 45 3rd Geneva Convention 47 4th Dublin Convention 70

3 REFUGEE ACT, AN ACT TO GIVE EFFECT TO THE CONVENTION RELATING TO THE STATUS OF REFUGEES DONE AT GENEVA ON THE 28TH DAY OF JULY, 1951, THE PROTOCOL RELATING TO THE STATUS OF REFUGEES DONE AT NEW YORK ON THE 31ST DAY OF JANUARY, 1967, AND THE CONVENTION DETERMINING THE STATE RESPONSIBLE FOR EXAMINING APPLICATIONS FOR ASYLUM LODGED IN ONE OF THE MEMBER STATES OF THE EUROPEAN COMMUNITIES DONE AT DUBLIN ON THE 15TH DAY OF JUNE, 1990, TO PROVIDE FOR THE APPOINTMENT OF A PERSON TO BE KNOWN AS THE REFUGEE APPLICATIONS COMMISSIONER AND THE ESTABLISHMENT OF A BOARD TO BE KNOWN AS THE REFUGEE APPEAL BOARD AND TO PROVIDE FOR MATTERS RELATED TO THE MATTERS AFORESAID. BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: Interpretation. 1. (1) In this Act, unless the context otherwise requires [26th June, 1996] applicant means a person who has made an application for a declaration under section 8; authorised officer means a person authorised in writing by. the Commissioner to exercise the powers conferred on an authorised officer by or under this Act; the Commissioner shall be construed in accordance with section 6; convention country means a country other than the State for the time being standing designated in an order under section 22(6); declaration shall be construed in accordance with section 17; the Dublin Convention means the Convention determining the state responsible for examining applications for asylum lodged in one of the Member States of the European Communities done at Dublin on the 15th day of June, 1990 (the text of which, in the English language, is, for convenience of reference, set out in the Fourth Schedule to this Act); the establishment day means the day appointed by the Minister under section 14; the High Commissioner means the United Nations High Commissioner for Refugees and includes the Representative for Ireland of the High Commissioner; the Geneva Convention means the Convention relating to the Status of Refugees done at Geneva on the 28th day of July, 1951, and includes the Protocol relating to the Status of Refugees done at New York on the 31st day of January, 1967 (the text of which, in the English language, is, for convenience of reference, set out in the Third Schedule to this Act); immigration officer 1 means an immigration officer appointed under the Aliens Order, 1946 (S. R. & O. No. 395 of 1946); information means information in the form of a document (including a thing) or in any other form; 1 By s. 3(5) of the Immigration Act 2004, this reference is to be construed as a reference to an immigration officer appointed under that section.

4 membership of a particular social group includes membership of a trade union and also includes membership of a group of persons whose defining characteristic is their belonging to the female or the male sex or having a particular sexual orientation; the Minister means the Minister for Justice; prescribed means prescribed by regulations made by the Minister; the Tribunal 2 means the Refugee Appeals Tribunal established by section 15; working day 3 means any day not being a Saturday, Sunday or public holiday. Refugee. 2. In this Act a refugee means a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it, but does not include a person who (a) is receiving from organs or agencies of the United Nations (other than the High Commissioner) protection or assistance, (b) is recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country, (c) 4 there are serious grounds for considering that he or she (i) has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes, (ii) has committed a serious non-political crime outside the State prior to his or her arrival in the State, or (iii) has been guilty of acts contrary to the purposes and principles of the United Nations. Extension to refugees of certain rights. 3. (1) Subject to section 17(2), a refugee in relation to whom a declaration is in force shall be entitled to the same rights and privileges as those conferred by law on persons generally who are not Irish citizens (as distinct from such rights or privileges conferred on any particular person or group of such persons). (2)(a) Without prejudice to the generality of subsection (1), a refugee in relation to whom a declaration is in force (i) shall be entitled to seek and enter employment, to carry on any business, trade or profession and to have access to education and training in the State in the like manner and to the like extent in all respects as an Irish citizen, 2 Definition substituted for Appeal Board : 22/1999, s. 11(1)(a)(i). 3 Definition ins. 22/1999, s. 11(1)(a)(ii). 4 Paragraphs (c), (d) and (e) repl. 26/2003 s. 7(a).

5 (ii) shall be entitled to receive, upon and subject to the terms and conditions applicable to Irish citizens, the same medical care and services and the same social welfare benefits as those to which Irish citizens are entitled, (iii) shall be entitled, subject to section 4(2) (I) to reside in the State, and (II) to the same rights of travel in or to or from the State as those to which Irish citizens are entitled, (iv) shall have the same freedom to practise his or her religion and the same freedom as regards the religious education of his or her child as an Irish citizen, (v) shall have access to the courts in the like manner and to the like extent in all respects as an Irish citizen, and (vi) shall have the right to form and be a member of associations and trade unions in the like manner and to the like extent in all respects as an Irish citizen. (b) In paragraph (a) social welfare benefits includes any payment or services provided for in or under the Social Welfare Acts, the Health Acts, 1947 to 1994, and the Housing Acts, 1966 to (c) Without prejudice to the generality of subsection (1) or section 3 of the Aliens Act, 1935, and notwithstanding anything contained in section 45 of the Land Act, 1965, section 16 of the Mercantile Marine Act, 1955, or an order under the Air Navigation and Transport Act, 1946, a refugee in relation to whom a declaration is in force shall be entitled to acquire, hold, dispose or otherwise deal with real or personal property or an interest in such property in the like manner, to the like extent and subject to the like obligations and limitations as an Irish citizen. Travel document. 4. (1) Subject to subsection (2), the Minister shall, on application in writing in that behalf and on payment to the Minister of such fee (if any) as may be prescribed with the consent of the Minister for Finance, issue to a refugee in relation to whom a declaration is in force a travel document identifying the holder thereof as a person to whom a declaration has been given. (2) The Minister may, in the interest of national security or public policy ( ordre public ), refuse to issue a travel document. (3) A travel document shall be in such form as may be prescribed or in a form to the like effect. (4) A person who applies to the Minister for a travel document under this section shall furnish to the Minister such information (if any) as the Minister may reasonably require for the purpose of his or her functions under this section. Prohibition of refoulement. 5. (1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. (2) Without prejudice to the generality of subsection (1), a person s freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).

6 Refugee Applications Commissioner. 6. (1)(a) For the purposes of this Act, there shall be a person (referred to in this Act as the Commissioner ) who shall be known as the Refugee Applications Commissioner. (b) The Commissioner shall perform the functions conferred on him or her by this Act. (2) The Commissioner shall be independent in the exercise of his or her functions under this Act. (3) The provisions of the First Schedule shall have effect in relation to the Commissioner. Annual report and information to Minister. 7. (1) The Commissioner shall, not later than 3 months after the end of each year, submit a report in writing to the Minister of his or her activities during that year and, not later than 1 month after such submission, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas. (2) The Commissioner shall furnish to the Minister such information relating to his or her activities as the Minister may from time to time require. Establishment of Refugee Advisory Board. 7A. 5 (1) There shall be a board to be known as the Refugee Advisory Board (in this Act referred to as the Board ) to perform the functions conferred on it by this Act. (2) The Board shall be independent in the performance of its functions. (3) The provisions of the Schedule to this section shall have effect in relation to the Board. (4)(a) 6 The Board shall, in every second year beginning with the year 2005, prepare and submit to the Minister a report in writing on the operation in the preceding 2 years of this Act and may include in the report information and comment in respect of asylum policy and refugees including any proposals to amend legislation and recommendations regarding the practice or procedures of public or private bodies in relation to applicants and any other matters relating to such operation coming to its attention to which it considers that his or her attention should be drawn and, not later than 1 month after such submission, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas. (b) The Board shall, at the request of the Minister, prepare and furnish to him or her a report in writing on such matters relating to the performance of its functions as the Minister may specify and as soon as may be after the receipt by the Minister of the report, he or she shall cause a copy of it to be laid before each House of the Oireachtas. (5) The Commissioner shall, whenever so requested by the Board, furnish to the Board information in relation to such matters as the Board may specify relating to the performance of its functions. SCHEDULE REFUGEE ADVISORY BOARD 5 Section and Schedule ins. 22/1999 s. 11(1)(b). 6 Paragraph am. 26/2003 s. 7(b)(i).

7 1. 7 The Board shall consist of a chairperson and 15 ordinary members who shall be appointed to be members of the Board by the Minister. 2. The Commissioner shall be a member of the Board and shall act as secretary to the Board. 3. Of the members of the Board (a) one shall be a representative of the Minister nominated by the Minister, (b) one shall be a representative of the Minister for Foreign Affairs nominated by the Minister for Foreign Affairs, (c) one shall be a representative of the Minister for Social, Community and Family Affairs nominated by the Minister for Social, Community and Family Affairs, (d) one shall be a representative of the Minister for Education and Science nominated by the Minister for Education and Science, (e) one shall be a representative of the Minister for Health and Children nominated by the Minister for Health and Children, (f) one shall be a representative of the Minister for the Environment and Local Government nominated by the Minister for the Environment and Local Government, (g) one shall be a representative of the Minister for Enterprise, Trade and Employment nominated by the Minister for Enterprise, Trade and Employment, (gg) 8 one shall be the chairperson of the Refugee Appeals Tribunal, (h) six shall be women and six shall be men. 4. The High Commissioner shall be given not less than 7 days notice in writing of the date and time of each meeting of the Board and shall be entitled to be present at and be heard at each meeting, either in person or through a representative. 5. In the selection of persons for appointment to membership of the Board regard shall be had to (a) the desirability of ensuring that a person or persons representative of refugees and applicants is or are appointed to membership of the Board, and (b) the person s interest in or knowledge of asylum and the provision of protection and assistance to refugees or his or her competence otherwise to assist the Board in the performance of its functions. 6. Subject to the provisions of this Schedule, the members of the Board shall hold office upon such terms and conditions as the Minister may determine. 7. The term of office of a member of the Board shall be 5 years and, subject to the provisions of this Schedule, a member shall be eligible for re-appointment. 8. Where a casual vacancy occurs among the members of the Board, the Minister may appoint a person to be a member of the Board to fill the vacancy and a member so appointed shall hold office for the remainder of the term of office for which his or her predecessor had been appointed, and the person shall be so appointed in the manner specified in paragraph 3 or 5, as the case may be, in which such predecessor was so appointed. 7 Paragraph am. 26/2003 s. 7(b)(ii). 8 Paragraph ins. 26/2003 s. 7(b)(iii).

8 9. Members of the Board shall be paid such remuneration and such allowances for expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine. 10. The Minister may remove from office any member of the Board who, in the opinion of the Minister, has become incapable through illness of effectively performing his or her functions or has committed stated misbehaviour. 11. The Board shall meet at least four times a year. Application for declaration. 8. (1) (a) A person who arrives at the frontiers of the State seeking asylum in the State or seeking the protection of the State against persecution or requesting not to be returned or removed to a particular country or otherwise indicating an unwillingness to leave the State for fear of persecution (i) shall be interviewed by an immigration officer as soon as practicable after such arrival, and (ii) may apply to the Minister for a declaration. (b) The immigration officer concerned shall inform a person referred to in paragraph (a), where possible in a language that the person understands, that he or she may apply under that paragraph for a declaration and that he or she is entitled to consult a solicitor and the High Commissioner. (c) 9 A person who at any time is in the State (whether lawfully or unlawfully) and is seeking the status of a refugee in the State may apply to the Minister for a declaration and, if he or she does so, shall be interviewed by an authorised officer or an immigration officer at such times as may be specified by the authorised officer or the immigration officer, as the case may be, who shall also inform the person that he or she is entitled to consult a solicitor and the High Commissioner and the person shall make himself or herself available for such interview at the times so specified. (2) 10 An interview under subsection (1) shall, in relation to the person the subject of the interview, seek to establish inter alia (a) whether the person wishes to make an application for a declaration and, if he or she does so wish, the general grounds upon which the application is based, (b) the identity of the person, (c) the nationality and country of origin of the person, (d) the mode of transport used and the route travelled by the person to the State, (e) the reason why the person came to the State, and (f) the legal basis for the entry into or presence in the State of the person, and shall, where necessary and possible, be conducted with the assistance of an interpreter and a record of the interview shall be kept by the officer conducting it and a copy of it shall be furnished to the person and, if the interview was conducted by an immigration officer, to the Commissioner. (3) 11 (a) The Commissioner shall notify the High Commissioner in writing of the making of an application and the notice shall include the name of the applicant and the name of his 9 Paragraph subst. 22/1999 s. 11(1)(c)(i). 10 Subsection subst. 22/1999 s. 11(1)(c)(ii).

9 or her country of origin and such other information as the Minister may specify by notice in writing addressed to the Commissioner. (b) The Commissioner shall furnish a copy of the record of any interview under subsection (1) (i) to the Minister, and (ii) to the High Commissioner whenever so requested by him or her in writing. (4) 12 An application under subsection (1) shall be made in writing in the prescribed form or in a form to the like effect and shall be addressed to the Commissioner. (5)(a) 13 Where it appears to an immigration officer or an authorised officer that a child under the age of 18 years, who has either arrived at the frontiers of the State or has entered the State, is not in the custody of any person, the officer shall, as soon as practicable, so inform the Health Service Executive and thereupon the provisions of the Child Care Act, 1991, shall apply in relation to the child. (b) 14 Where it appears to the Health Service Executive, on the basis of information available to it, that an application for a declaration should be made by or on behalf of a child referred to in paragraph (a), the Health Service Executive shall arrange for the appointment of an employee of the Health Service Executive or such other person as it may determine to make an application on behalf of the child. (c) 15 Any costs incurred by a person under paragraph (b) other than any legal costs arising from such application shall be paid by the Health Service Executive. (d) 16 repealed (6) For the purposes of this Act, a person who travels by sea or air from outside the State and lands in the State shall be deemed to arrive at the frontiers of the State. Leave to enter or remain in State. 9. (1) Subject to the subsequent provisions of this section, an applicant, being a person referred to in section 8(1)(a), shall be given leave to enter the State by the immigration officer concerned. (2) Subject to the subsequent provisions of this section, a person to whom leave to enter the State is given under subsection (1) or an applicant, being a person referred to in section 8(1)(c), shall be entitled to remain in the State until (a) 17 the date on which his or her application is transferred to a convention country pursuant to section 22 or to a safe third country (within the meaning of that section), or (b) 18 the date on which his or her application is withdrawn or deemed to be withdrawn under this section or section 11, or 11 Subsection subst. 22/1999 s. 11(1)(c)(iii). 12 Subsection subst. 22/1999 s. 11(1)(c)(iv). 13 Paragraph subst. 22/1999 s. 11(1)(c)(v); am. 42/2004 s. 75, Sch. 6 Pt Subsection subst. 42/2004 s. 75, Sch. 6 Pt Subsection am. 42/2004 s. 75, Sch. 6 Pt Subsection repealed 42/2004 s. 75, Sch. 6 Pt Paragraphs (a) and (b) repl. 26/2003 s. 7(c)(i). 18 Paragraphs (a) and (b) repl. 26/2003 s. 7(c)(i).

10 (c) the date on which notice is sent that the Minister has refused to give him or her a declaration. (3) 19 (a) The Commissioner shall give or cause to be given to a person referred to in subsection (2) a temporary residence certificate (in this section referred to as a certificate ) stating the name and containing a photograph of the person and such other information relating to the person as may be prescribed and specifying the date on which the person s application for a declaration was received by the Commissioner and stating that, subject to the provisions of this Act, and, without prejudice to any other permission or leave granted to the person to remain in the State, the person shall not be removed from the State before the final determination of his or her application. (b) A certificate shall remain the property of the Minister. (c) 20 A certificate shall be deemed to be a registration certificate for the purposes of section 12 of the Immigration Act 2004 and a person who is issued with a certificate shall be deemed to have complied with section 9 of that Act. (d) If a person forges, or fraudulently alters, or assists in forging or fraudulently altering, or procures the forging or fraudulent alteration of a certificate, that person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 1,500, or to imprisonment for a term not exceeding 12 months, or to both. (4) An applicant shall not (a) leave or attempt to leave the State without the consent of the Minister, or (b) seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration. (4A) 21 (a) An applicant shall inform the Commissioner of his or her address and of any change of address as soon as possible. (b) Where 5 working days have elapsed since the making of an application for a declaration and the applicant has not informed the Commissioner of his or her address, the application shall be deemed to be withdrawn. (5) 22 (a) An immigration officer or an authorised person may, by notice in writing, require an applicant (i) to reside or remain in particular districts or places in the State, or (ii) to report at specified intervals to an immigration officer or person or persons authorised by the Minister or member of the Garda Síochána specified in the notice, and the applicant shall comply with the requirement. (b) In this subsection an authorised person means a person appointed by the Minister to be an authorised person for the purposes of this subsection. 19 Subsection subst. 22/1999 s. 11(1)(d)(i). 20 Subsection subst. 1/2004 s. 16(4). 21 Subsection ins. 29/2000 s. 9(a), repl. 26/2003 s. 7(c)(ii). 22 Subsections (5) and (6) repl. 26/2003 s. 7(c)(iii).

11 (6) 23 Upon application to the Minister in that behalf by the applicant concerned, the Minister may, as he or she thinks fit, direct the immigration officer or the authorised person concerned to withdraw the requirement concerned or to amend it in a specified manner. (7) 24 A person who contravenes subsection (4), (4A) or (5) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 500 or to imprisonment for a term not exceeding 1 month or to both. (8) Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that an applicant (a) poses a threat to national security or public order in the State, (b) has committed a serious non-political crime outside the State, (c) has not made reasonable efforts to establish his or her true identity, (d) 25 intends to avoid removal from the State in the event of his or her application for asylum being transferred to a convention country pursuant to section 22 or a safe third country (within the meaning of that section), (e) intends to leave the State and enter another state without lawful authority, or (f) without reasonable cause has destroyed his or her identity or travel documents or is in possession of forged identity documents, he or she may detain the person in a prescribed place (referred to subsequently in this Act as a place of detention ). (9) The Minister shall make regulations providing for the treatment of persons detained pursuant to this section. (10)(a) A person detained pursuant to subsection (8) shall, as soon as practicable, be brought before a judge of the District Court assigned to the District Court district in which the person is being detained. (b) Where a person is brought before a judge of the District Court pursuant to paragraph (a), the judge may (i) 26 subject to paragraph (c), and if satisfied that one or more of the paragraphs of subsection (8) applies in relation to the person, commit the person concerned to a place of detention for a period not exceeding 21 days from the time of his or her detention, or (ii) without prejudice to paragraph (c), release the person and the judge may make such release subject to such conditions as he or she considers appropriate, including, but without prejudice to the generality of the foregoing, any one or more of the following conditions: (I) that the person resides or remains in a particular district or place in the State, (II) that he or she reports to a specified Garda Síochána station or immigration officer at specified intervals, 23 Subsections (5) and (6) repl. 26/2003 s. 7(c)(iii). 24 Subsection am. 26/2003 s. 7(c)(iv). 25 Paragraph am. 26/2003 s. 7(c)(v). 26 Subparagraph am. 26/2003 s. 7(c)(vi).

12 (III) that he or she surrenders any passport or travel document in his or her possession. (c) If, at any time during the detention of a person pursuant to this section, an immigration officer or a member of the Garda Síochána is of opinion that none of the paragraphs of subsection (8) applies in relation to the person, he or she shall, as. soon as practicable, he brought before a judge of the District Court assigned to the District Court district where the person is being detained and if the judge is satisfied that none of the paragraphs of subsection (8) applies in relation to the person, the judge shall release the person. (d) Where a person is released from a place of detention subject to one or more of the conditions referred to in subsection (10)(b)(ii), a judge of the District Court assigned to the District Court district in which the person resides may, on the application of the person, an immigration officer or a member of the Garda Síochána, if he or she considers it appropriate to do so, vary (whether by the alteration, addition or revocation of a condition) a condition. (11) Subsections (4), (5), (8) and (10) shall apply only to an applicant who, but for the provisions of this Act, would not be entitled to enter or remain in the State. (12)(a) Subsection (8) shall not apply to a person who is under the age of 18 years. (b) If and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under the age of 18 years, the provisions of subsection (8) shall apply as if he or she had attained the age of 18 years. (c) 27 Where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting in loco parentis or any other person) and such person is detained pursuant to the provisions of this section, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the Health Service Executive of the detention and of the circumstances thereof. (13)(a) A member of the Garda Síochána may detain a person who, in the member's opinion, has failed to comply with a condition imposed by the District Court under subsection (10) in a place of detention. (b) A person detained under paragraph (a) shall be brought as soon as practicable before a judge of the District Court assigned to the District Court district in which the person is being detained; and subsection (10) shall apply to such person detained under paragraph (a) as it applies to a person detained pursuant to subsection (8) with any necessary modifications. (c) If a judge of the District Court is satisfied in relation to a person brought before him or her pursuant to paragraph (b) that the person has complied with the condition concerned, the judge shall order the release of the person. (14)(a) 28 Where a judge of the District Court commits a person to a place of detention under subsection (10)(b) or (13)(b), a judge of the District Court assigned to the District Court district in which the person is being detained may, if satisfied that one or more of the paragraphs of subsection (8) applies in relation to the person, commit him or 27 Subsection subst. 42/2004 Sch. 6 Pt Paragraph am. 26/2003 s. 7(c)(vii).

13 her for further periods (each period being a period not exceeding 21 days) pending the determination of the person's application under section 8. (b) If at any time during the detention of a person pursuant to this section the person indicates a desire to leave the State, he or she shall, as soon as practicable, be brought before a judge of the District Court assigned to the District Court district in which the person is being detained and the judge shall, if he or she is satisfied that the person does not wish to proceed with his or her application for a declaration and wishes to leave the State, order the Minister to arrange for the removal of the person from the State and may include in the order such ancillary or consequential provisions as he or she may determine and the person concerned shall be deemed to have withdrawn his or her application for a declaration. (15) 29 A person referred to in subsection (1) shall not be given leave to enter the State under that subsection if he or she is the subject of an order under section 4 of the Immigration Act, (16) Where, pursuant to subsection (15), a person is not given leave to enter the State he or she shall not be entitled to make an application for a declaration without the consent of the Minister. Powers of authorised officers and immigration officers. 9A. 30 (1) An authorised officer, a member of the Garda Síochána, or an immigration officer may, for the purposes of this Act, take or cause to be taken the fingerprints of an applicant. (2) Fingerprints shall not be taken under this section from a person under the age of 14 years except in the presence of a person who is (a) a parent or a person who is acting in loco parentis;or (b) 31 an employee of the Health Service Executive or other person appointed by the Health Service Executive under section 8(5)(b). (3) The fingerprints of a person under the age of 14 years shall not be taken under this section without the prior approval (a) in the case of an authorised officer or an immigration officer who is not a member of the Garda Síochána, of the Minister or a person designated for that purpose by the Minister; or (b) in the case of a member of the Garda Síochána, of his or her chief superintendent or a person designated for that purpose by his or her chief superintendent. (4) If and for so long as the authorised officer, the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under the age of 14 years, the provisions of subsection (2) shall apply as if he or she had attained the age of 14 years. (5) An applicant who refuses to permit his or her fingerprints to be taken pursuant to subsection (1) shall be deemed not to have made reasonable efforts to establish his or her true identity within the meaning of section 9(8)(c), and to have failed to comply with the requirements of section 11C. (6) The Commissioner of the Garda Síochána shall arrange for the maintenance of a record of fingerprints taken pursuant to subsection (1). 29 Subsection subst. 22/1999 s. 11(1)(d)(ii). 30 Section ins. 22/1999 s. 11(1)(e), repl. 26/2003 s. 7(d). 31 Subsection subst. 42/2004 Sch. 6 Pt. 15

14 (7) Every fingerprint of an applicant taken pursuant to subsection (1) and every copy thereof shall, if not previously destroyed, be destroyed (a) in case the applicant becomes a citizen of the State, before the expiration of one month after the granting of the certificate of naturalisation or of Irish citizenship to him or her or the acknowledgement by the Minister of the validity of his or her declaration accepting Irish citizenship, as the case may be; (b) in any other case, before the expiration of 10 years after the taking of such fingerprints. (8) Information obtained pursuant to subsection (1) may be communicated to convention countries or a safe third country (within the meaning of section 22) as if it was information to which subsection (9) or, as may be appropriate, subsection (10) of that section relates. Provisions relating to detained persons. 10. (1) The immigration officer or, as the case may be, the member of the Garda Síochána concerned shall, without delay, inform a person detained pursuant to subsection (8) or (13)(a) of section 9 or cause him or her to be informed, where possible in a language that the person understands (a) that he or she is being detained pursuant to section 9, (b) that he or she shall, as soon as practicable, be brought before a court which shall determine whether or not he or she should be committed to a place of detention or released pending consideration of that person s application for a declaration under section 8, (c) that he or she is entitled to consult a solicitor, (d) that he or she is entitled to have notification of his or her detention, the place of detention concerned and every change of such place sent to the High Commissioner and to another person reasonably named by him or her, (e) that he or she is entitled to leave the State in accordance with the provisions of this paragraph at any time during the period of his or her detention and if he or she indicates a desire to do so, he or she shall, as soon as practicable, be brought before a court and the court may make such orders as may be necessary for his or her removal from the State, and (f) that he or she is entitled to the assistance of an interpreter for the purpose of consultation with a solicitor pursuant to paragraph (c) and for the purpose of any appearance before a court pursuant to section 9. (2) The immigration officer or, as the case may be, the member of the Garda Síochána concerned shall also explain to a person detained pursuant to subsection (8) or (13)(a) of section 9, where possible in a language that the person understands, that, if he or she does not wish to exercise a right specified in subsection (1) immediately, he or she will not be precluded thereby from doing so later. (3) The immigration officer or, as the case may be, the member of the Garda Síochána concerned shall notify the Commissioner and the Tribunal 32 of the detention or release of a person pursuant to the provisions of section 9. (4) The Commissioner or, as the case may be, the Tribunal 33 shall ensure that the application for a declaration of a person detained pursuant to subsection (8) or (13)(a) of section 9 shall be dealt 32 Tribunal substituted for Appeal Board : 22/1999 s 11(1)(f).

15 with as soon as may be and, if necessary, before any other application for a declaration of a person not so detained. Investigation of application by Commissioner. 11. (1) 34 Where an application is received by the Commissioner under section 8 and the application is not withdrawn or deemed to be withdrawn pursuant to this section or section 9 or 22, it shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given. (2) 35 In a case to which subsection (1) applies, the Commissioner shall, for the purposes of that provision, direct an authorised officer or officers to interview the applicant concerned and the officer or officers shall comply with any such direction and furnish a report in writing in relation to the interview concerned to the Commissioner and an interview under this subsection shall, where necessary and possible, be conducted with the assistance of an interpreter. (3) 36 (a) The applicant concerned, the High Commissioner or any other person concerned may make representations in writing to the Commissioner in relation to any matter relevant to an investigation by him or her under this section and the Commissioner shall take account of any such representations made before or during an interview under subsection (2). (b) The High Commissioner may, whenever he or she so requests, be present at an interview under subsection (2). (4)(a) The Commissioner may, for the purposes of his or her functions under this Act, by notice in writing, request the Minister, the Minister for Foreign Affairs or such other persons as may be specified in the notice to make such inquiries and to furnish to him or her such information in his or her possession or control as he or she may reasonably require within such period as shall be specified in the notice. (b) Following the receipt of a request under subsection (1), the Minister or the Minister for Foreign Affairs, as the case may be, may withhold any information in his or her possession or control in the interest of national security or public policy ( ordre public ). (5) Nothing in the Data Protection Act, 1988, shall be construed as prohibiting a person from giving to the Commissioner, on request by him or her, such information as is in the person s possession or control relating to the application. (6) 37 and (7) [repealed] (8) 38 On receipt by the Commissioner of an application under the provisions of this Act, the Commissioner shall, without delay, give or cause to be given to the applicant a statement in writing specifying, where possible in a language that he or she understands (a) the procedures to be observed in the investigation of applications under this section, (b) the entitlement of the applicant to consult a solicitor, (c) the entitlement of the applicant to contact the High Commissioner, 33 Tribunal substituted for Appeal Board : 22/1999 s 11(1)(f). 34 Subsection substituted: 22/1999 s. 11(1)(g)(i); substituted 26/2003 s. 7(e)(i). 35 Subsection am. 22/1999 s. 11(1)(g)(ii); substituted 26/2003 s. 7(e)(ii). 36 Subsection am. 22/1999 s. 11(1)(g)(iii); substituted 26/2003 s. 7(e)(iii). 37 Subsection (6) am. 22/1999 s. 11(1)(g)(iv); subss. (6) and (7) repealed 26/2003 s. 7(e)(iv). 38 Subsection am. 22/1999 s. 11(1)(g)(v).

16 (d) the entitlement of the applicant to make written submissions to the Commissioner, (e) the duty of the applicant to co-operate with the Commissioner and to furnish information relevant to his or her application, (f) 39 the obligation of the applicant to comply with subsections (4), (4A) and (5) of section 9 and the possible consequences of non-compliance with that obligation including the possibility that his or her application for a declaration may be deemed to be withdrawn and that the Minister may refuse to give the applicant a declaration, (g) the possible consequences of the failure of the applicant to attend an interview under this section. (9) 40 An applicant may withdraw his or her application for a declaration by sending notice of withdrawal to the Commissioner. (10) Where an applicant does not attend for interview with an authorised officer under this section on the date and at the time fixed for the interview then, unless the applicant, not later than 3 working days from that date, furnishes the Commissioner with an explanation for the nonattendance which in the opinion of the Commissioner is reasonable in the circumstances, his or her application shall be deemed to be withdrawn. (11) Where (a) it appears to the Commissioner that an applicant is failing in his or her duty to cooperate with the Commissioner or to furnish information relevant to his or her application for a declaration, or (b) the Minister notifies the Commissioner that he or she is of opinion that the applicant is in breach of subsection (4)(a), (4A) or (5) of section 9, the Commissioner shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 15 working days of the sending of the notice) whether he or she wishes to continue with his or her application and, if an applicant does not furnish an indication within the time specified in the notice, his or her application for a declaration shall be deemed to be withdrawn. (12) The procedures to be followed in investigations under this section may be prescribed and different procedures may be prescribed for different classes of applications. Burden of proof 11A. 41 (1) Where, at any time during the investigation of an application by the Commissioner under section 11, it appears to him or her that an applicant (a) is a national of, or has a right of residence in, a country standing designated by order under section 12(4) as a safe country of origin, or (b) had lodged a prior application for asylum in another state party to the Geneva Convention, then the applicant shall be presumed not to be a refugee unless he or she shows reasonable grounds for the contention that he or she is a refugee. 39 Paragraphs (e), (f) and (g) replaced 26/2003 s. 7(e)(v). 40 Subsection ins. 22/1999 s. 11(1)(g)(vi); replaced with new subss. (9) to (12) 26/2003 s. 7(e)(vi). 41 Section inserted 26/2003 s. 7(f).

17 (2) Where an application is one to which section 22 applies, it shall be for the applicant to show that his or her application should be examined in the State. (3) Where an applicant appeals against a recommendation of the Commissioner under section 13, it shall be for him or her to show that he or she is a refugee. Credibility 11B. 42 The Commissioner or the Tribunal, as the case may be, in assessing the credibility of an applicant for the purposes of the investigation of his or her application or the determination of an appeal in respect of his or her application, shall have regard to the following: (a) whether the applicant possesses identity documents, and, if not, whether he or she has provided a reasonable explanation for the absence of such documents; (b) whether the applicant has provided a reasonable explanation to substantiate his or her claim that the State is the first safe country in which he or she has arrived since departing from his or her country of origin or habitual residence; (c) whether the applicant has provided a full and true explanation of how he or she travelled to and arrived in the State; (d) where the application was made other than at the frontiers of the State, whether the applicant has provided a reasonable explanation to show why he or she did not claim asylum immediately on arriving at the frontiers of the State unless the application is grounded on events which have taken place since his or her arrival in the State; (e) where the applicant has forged, destroyed or disposed of any identity or other documents relevant to his or her application, whether he or she has a reasonable explanation for so doing; (f) whether the applicant has adduced manifestly false evidence in support of his or her application, or has otherwise made false representations, either orally or in writing; (g) whether the applicant, without reasonable cause, having withdrawn his or her application and not having been refused a declaration under section 17, has made a subsequent application under section 8; (h) whether the applicant, without reasonable cause, has made an application following the notification of a proposal under section 3(3)(a) of the Immigration Act 1999; (i) whether the applicant has complied with the requirements of section 11C; (j) whether the applicant has, without reasonable cause, failed to comply with the requirements of section 9(4)(a); (k) whether the applicant has, without reasonable cause, failed to comply with the requirements of section 9(4A); (l) whether the applicant has, without reasonable cause, failed to comply with the requirements of section 9(5); (m) whether, in the case of an application to which section 16 applies, the applicant has furnished information in relation to the application which he or she could reasonably have furnished during the investigation of the application by the Commissioner but did not so furnish. 42 Section inserted 26/2003 s. 7(f).

18 Duty to co-operate 11C. 43 (1) It shall be the duty of an applicant to co-operate in the investigation of his or her application and in the determination of his or her appeal, if any. (2) In compliance with subsection (1), an applicant shall furnish to the Commissioner or the Tribunal, as may be appropriate, as soon as reasonably practicable, all information in his or her possession, control or procurement relevant to his or her application. Prioritisation of applications (1) Subject to the need for fairness and efficiency in dealing with applications for a declaration under this Act, the Minister may, where he or she considers it necessary or expedient to do so, give a direction in writing to the Commissioner or the Tribunal or to both requiring either or both of them, as the case may be, to accord priority to certain classes of applications determined by reference to one or more of the following matters: (a) the grounds of applications under section 8, (b) the country of origin or habitual residence of applicants, (c) any family relationship between applicants, (d) the ages of applicants and, in particular, of persons under the age of 18 years in respect of whom applications are made, (e) the dates on which applications were made, (f) considerations of national security or public policy, (g) the likelihood that the applications are well-founded, (h) if there are special circumstances regarding the welfare of applicants or the welfare of family members of applicants, (i) whether applications do not show on their face grounds for the contention that the applicant is a refugee, (j) whether applicants have made false or misleading representations in relation to their applications, (k) whether applicants had lodged prior applications for asylum in another country, (l) whether applications under section 8 were made at the earliest opportunity after arrival in the State, (m) whether applicants are nationals of or have a right of residence in a country of origin designated as safe under this section, (n) if an applicant is a person to whom paragraph (a), (b) or (c) of section 2 applies. (2) The Commissioner or the Tribunal shall comply with a direction given to him, her or it under this section. (3) The Minister may by a direction revoke or alter a direction given by him or her under subsection (1). (4)(a) The Minister may, after consultation with the Minister for Foreign Affairs, by order designate a country as a safe country of origin. 43 Section inserted 26/2003 s. 7(f). 44 Section replaced 26/2003 s. 7(g).

19 (b) In deciding whether to make an order under paragraph (a), the Minister shall have regard to the following matters: (i) whether the country is a party to and generally complies with obligations under the Convention Against Torture, the International Covenant on Civil and Political Rights, and, where appropriate, the European Convention on Human Rights, (ii) whether the country has a democratic political system and an independent judiciary, (iii) whether the country is governed by the rule of law. (c) The Minister may by order amend or revoke an order under this subsection including an order under this paragraph. (5) In this section the Convention against Torture means the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by resolution 39/46 of the General Assembly of the United Nations on 10 December 1984; the European Convention on Human Rights means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950; the International Covenant on Civil and Political Rights means the International Covenant on Civil and Political Rights adopted by Resolution 2200A (XXI) of the General Assembly of the United Nations on 16 December Recommendations and reports of Commissioner (1) Where the Commissioner carries out an investigation under section 11 he or she shall, as soon as may be, prepare a report in writing of the results of the investigation and such report shall refer to the matters raised by the applicant in the interview under section 11 and to such other matters as the Commissioner considers appropriate and shall set out the findings of the Commissioner together with his or her recommendation whether the applicant concerned should or, as the case may be, should not be declared to be a refugee. (2) Where an application for a declaration is withdrawn or deemed to be withdrawn pursuant to section 9 or 11, then (a) any investigation under section 11 shall be terminated, (b) the report referred to in subsection (1) shall state that the application has been withdrawn or deemed to be withdrawn, as the case may be, and shall include a recommendation that the applicant concerned should not be declared to be a refugee, and (c) no appeal under section 16 shall lie against a recommendation under paragraph (b). (3) The Commissioner shall, if so requested by the High Commissioner, notify him or her of the making of the recommendation under subsection (1). (4)(a) The Commissioner shall send a copy of a report under subsection (1) to the applicant concerned, to his or her solicitor (if known) and, if so requested by the High Commissioner, to him or her. 45 Section replaced 26/2003 s. 7(h).